Tuesday, February 25, 2020

Knowledge of Infringement Not Required for Inducement

Hospira Healthcare Corporation v Kennedy Trust for Rheumatology Research 2020 FCA 30 Locke JA: Rivoalen, Nadon JJA var’g 2018 FC 259 Phelan J
            2,261,630 / infliximab / INFLECTRA

In this, my final post on Hospira v Kennedy Trust, I will deal with the knowledge requirement for inducing infringement. The third branch of the Weatherford test for inducing infringement requires that “the influence must knowingly be exercised by the inducer, that is, the inducer knows that this influence will result in the completion of the act of infringement”: 2011 FCA 228 [162]. Locke JA clarified that “the knowledge at issue in the third prong of the test is knowledge that the influence is being exercised, rather than knowledge that the resulting activity will be an infringement.” [45] He noted that some decisions had indicated that knowledge of the patent itself was required, but these suggestions had not been accompanied by a sustained analysis. The most in depth treatment of the point was by Gauthier J (as she then was) in Bauer v Easton 2010 FC 361 [193]-[203], in which, as Locke JA explained, Gauthier J “observed that knowledge that a particular activity is an infringement is not an element of direct infringement and, since inducing infringement is not a tort distinct from direct infringement, it should not be an element of inducing infringement either” [45]. Locke JA agreed [45]. I take it that he intended agreement with her analysis generally, and not just this particular principle. So, there is no requirement of an “intent to infringe” on the part of the indirect party, nor is knowledge of the patent itself required [Bauer 200]. All that is required is knowledge that the actions of the indirect party would induce another to do something that in fact constitutes infringement [Bauer 200]. The third branch would not be satisfied where, for example, a suggestion by the indirect party had been misunderstood, and the misunderstanding had resulted in infringement [Bauer 201]. This is not a very surprising development, but it is nonetheless helpful to have this point affirmed by the FCA. It can now be considered well settled.

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